Citation Nr: 0206812
Decision Date: 06/25/02 Archive Date: 07/03/02
DOCKET NO. 97-26 633A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to service connection for a left knee disability,
claimed as secondary to service-connected disabilities of the
left hip and tibial stress fractures on the right and left.
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
Jonathan E. Taylor, Counsel
INTRODUCTION
The appellant served on active duty from September 1984 to
March 1985. The appellant also served in the Arkansas
National Guard.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a January 1998 rating decision of the
North Little Rock, Arkansas, Department of Veterans Affairs
(VA) Regional Office (RO).
The appellant appeared at a hearing held at the RO on January
19, 1999. A transcript of that hearing has been associated
with the record on appeal.
In an October 27, 1997 statement, the appellant withdrew his
claims of entitlement to increased disability ratings for his
service-connected left hip disability, stress fracture of the
left tibia, and stress fracture of the right tibia. See
38 C.F.R. § 20.204 (2001). Accordingly, these issues are not
before the Board.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant's appeal has been obtained by
the agency of original jurisdiction.
2. In April 1997 the appellant suffered a tear to the
anterior cruciate ligament of his left knee.
3. The evidence does not show that the appellant's left knee
disability is related to his service-connected disabilities
of the left hip, with stress fracture of the femur and tibial
stress fractures on the right and left.
CONCLUSION OF LAW
The appellant is not entitled to service connection for a
left knee disability as secondary to his service-connected
disabilities of the left hip injury with stress fracture of
the femur and tibial stress fractures on the right and left.
38 C.F.R. § 3.310(a) (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In April 1995 the appellant was granted service connection
for residuals of a left hip injury with stress fracture of
the left femur and for residuals of stress fractures to both
tibiae.
On April 13, 1997, the appellant was treated at a VA facility
for complaints of chronic knee pain in the past. He stated
that when he stepped out of his truck that morning his left
knee "gave way." He did not hear or feel a pop, but he had
severe knee pain and was unable to walk on the knee. The
impression was ligamentous injury of the left knee. The
appellant was referred for an orthopedic consultation. At
the consultation on April 17, 1997, the appellant was
diagnosed with tears of the anterior cruciate ligament, the
medial collateral ligament, and possibly the meniscus. The
appellant was referred to physical therapy. At an April 22,
1997 physical therapy session, the appellant reported that
his left knee buckled or folded as he had exited his truck on
April 13, 1997. He reported hearing three pops that had
sounded like gunshots. Swelling of the knee had been
instantaneous. He reported a history of injuries to his left
hip and both knees from a fall down stairs. He added that
his left leg would go to sleep at times when he was seated or
lying down.
At an April 27, 1997 VA examination, the examiner noted that
the appellant had been found to have a stress fracture in the
mid-portion of his left femur in January 1985. In January
1985 the appellant had complained of pain in both tibiae.
After a bone scan in February 1985, the appellant had been
diagnosed as having stress fractures in both tibiae. In June
1985 the appellant had fallen down stairs and sustained
trauma to the left hip area. In October 1985 the appellant
had been diagnosed as having a pulled biceps femoris muscle.
The appellant reported that post service he had been employed
as an ironworker, which involved joining steel girders and
walking on girders at height until April 13, 1997. The
appellant reported that his left hip had a tendency to "go
to sleep." He further described the sensation as being like
"bumble bees . . . stinging the leg." He stated that an
episode of that sensation had occurred on April 13, 1997,
and, when he left his vehicle on that day, he fell on his
left knee because it went out from under him. The examiner
noted that the appellant's left knee injury had been
diagnosed as a torn anterior cruciate ligament. Regarding
the appellant's service-connected disabilities, the examiner
diagnosed remote stress fractures of the left hip, right
tibia, and left tibia, according to the record.
In a September 1997 statement, W. F., M.D. (Dr. F.), stated,
"There is no way I can evaluate the association between a
remote hip injury and a more acute knee injury[;] however, it
is possible the two are inter-connected."
At a January 1999 hearing, the appellant reported that in
December 1998 a Dr. J. A. (Dr. A.) had performed surgery on
his left knee to repair a torn anterior cruciate ligament.
The appellant stated that, on "January 21, 1997," he had
stopped by a friend's house at the conclusion of an
approximately 200-mile trip. He stated that, as he was
exiting his truck, he fell down. He stated that his leg had
fallen asleep during the trip. He stated that his leg felt
numb-as if needles were sticking into it. He stated that he
had expected his leg to support his weight in spite of the
numbness. He testified that he had been treated at a VA
facility but none of the examiners had related his left knee
injury to his service-connected disabilities. The appellant
stated that Dr. F., who was a friend of his, had related his
left knee injury to his service-connected left him
disability. According to the appellant, Dr. F. had explained
that the relationship was remotely possible because the
appellant had had a hip problem for approximately ten years
and that the appellant had a gaited walk and frequently
limped. The appellant stated that, prior to his injury in
1997, he had experienced episodes of pain but no swelling in
his left knee. He stated that his left knee had occasionally
been limited in how much he could flex or rotate it and that
his knee had occasionally caused him to stumble. The
appellant stated that his left leg disabilities had required
him to quit certain jobs because he had been unable to
perform the work required. He stated that he had had many
different jobs, some of which had been with the same company.
The appellant's spouse testified about the effect of the
appellant's current left knee disability on his activities.
At a March 1999 VA examination, the appellant reported
falling from a vehicle in April 1997 and sustaining an injury
to his left knee because it went out from under him. In
December 1998 the appellant's anterior cruciate ligament had
been repaired by a private physician. The VA examiner
diagnosed left hip arthralgia, with no hip joint disease
found, and left knee remote surgery for anterior cruciate
ligament repair. The examiner opined that the appellant's
left knee disability was not secondary to his left hip
disability.
At a June 1999 VA examination, the examiner, who had
conducted the VA examinations of the appellant in April 1997
and March 1999, responded to the following question from the
appellant's then representative, "In your opinion you stated
that the anterior cruciate ligament repair of the left knee
was not secondary to the left hip. Could it have been
aggravated due to the stress fracture on the left hip injury
that caused [the appellant] to walk with an altered gait for
many years?" The examiner responded, "No." The examiner
explained that the appellant's cruciate injury occurred as a
sudden injury to the left knee. He added that, if the
appellant had experienced gradual failure of the slightest
degree of this stricture, then attention would have been
directed to the left knee early on, and the manifestations
would not have allowed him to return to steel work. The
examiner therefore concluded that the acute injury was not
superimposed on a chronic attenuation. The examiner opined
further that the appellant's altered gait could not be
attributed to stress fractures that occurred in 1995. The
examiner explained that cases with altered gait alone do not
place the anterior cruciate ligament in danger.
VA has a duty to assist veterans in the development of facts
pertinent to their claims. There has been a significant
change in the law during the pendency of this appeal. On
November 9, 2000, the President signed into law the Veterans
Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et
seq. (West Supp. 2001); see also 66 Fed. Reg. 45620 (August
29, 2001) (to be codified as amended at 38 C.F.R. § 3.102,
3.156(a), 3.159, 3.326(a)) (VA regulations implementing the
VCAA). This law redefines the obligations of VA with respect
to the duty to assist and includes an enhanced duty to notify
a claimant as to the information and evidence necessary to
substantiate a claim for VA benefits.
First, VA has a duty to notify the veteran and his
representative, if represented, of any information and
evidence needed to substantiate and complete a claim.
38 U.S.C.A. §§ 5102, 5103 (West Supp. 2001); 66 Fed. Reg.
45620, 45630 (August 29, 2001) (to be codified at 38 C.F.R.
§ 3.159(b)). Information means non-evidentiary facts, such
as the veteran's address and Social Security number or the
name and address of a medical care provider who may have
evidence pertinent to the claim. 66 Fed. Reg. 45620, 45630
(August 29, 2001) (to be codified at 38 C.F.R.
§ 3.159(a)(5)). Second, VA has a duty to assist the veteran
in obtaining evidence necessary to substantiate the claim.
38 U.S.C.A. § 5103A (West Supp. 2001); 66 Fed. Reg. 45620,
45630-31 (August 29, 2001) (to be codified at 38 C.F.R.
§ 3.159(c)).
The VCAA is applicable to all claims filed on or after the
date of enactment, November 9, 2000, or filed before the date
of enactment and not yet final as of that date. VCAA,
38 U.S.C.A. § 5100 et seq. (West Supp. 2001); see also
Karnas v. Derwinski, 1 Vet. App. 308 (1991). As discussed in
more detail below, the Board finds that the recent changes in
the law brought about by the enactment of the VCAA do not
have any effect on the appellant's claim. The Board finds
that even though this law was enacted during the pendency of
this appeal, and thus, has not been considered by the RO,
there is no prejudice to the appellant in proceeding with
this appeal. See Bernard v. Brown, 4 Vet. App. 384, 394
(1993) (when the Board addresses a matter not addressed by
the RO, the Board must provide an adequate statement of
reasons and bases as to why there is no prejudice to the
veteran). As discussed below, the RO fulfilled its duties to
inform and assist the appellant on this claim. Accordingly,
the Board can issue a final decision on the appellant's claim
because all notice and duty to assist requirements have been
fully satisfied, and the appellant is not prejudiced by
appellate review.
Sufficient information concerning the appellant was of record
at the time that he filed his claim. In a November 1998
Statement of the Case (SOC) and in Supplemental Statements of
the Case (SSOC) issued in May 1999 and February 2000, the RO
informed the appellant of the type of evidence needed to
substantiate his claim, specifically the evidence required to
show service connection for a disability including medical
evidence relating the appellant's left knee injury to his
service-connected disabilities. VA has no outstanding duty
to inform the appellant that any additional information or
evidence is needed. The Board concludes that the discussions
in the SOC and SSOCs informed the appellant of the
information and evidence needed to substantiate this claim
and complied with VA's notification requirements.
As for VA's duty to assist a veteran, there is no indication
that relevant (i.e., pertaining to treatment for the claimed
disability) records exist that have not been obtained.
Although the appellant testified at his hearing that he has
been treated by a Dr. A. for his left knee disability, there
is no indication in the record that Dr. A. has related the
appellant's left knee disability to his service-connected
disabilities. As for VA's duty to obtain any medical
opinions, that was fulfilled by providing a VA examinations
to the appellant in March 1999 and June 1999.
The Board finds that VA has done everything reasonably
possible to assist the appellant. A remand or further
development of this claim would serve no useful purpose. See
Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict
adherence to requirements in the law does not dictate an
unquestioning, blind adherence in the face of overwhelming
evidence in support of the result in a particular case; such
adherence would result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran);
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which
would only result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran are to
be avoided). VA has satisfied its duties to inform and
assist the appellant in this case. Further development and
further expending of VA's resources is not warranted. Any
"error" to the appellant resulting from this Board decision
does not affect the merits of his claim or his substantive
rights, for the reasons discussed above, and is therefore
harmless. See 38 C.F.R. § 20.1102 (2001). Having determined
that the duties to inform and assist the appellant have been
fulfilled, the Board must assess the credibility, and
therefore the probative value of proffered evidence of record
in its whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995);
see Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden
v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Guimond v.
Brown, 6 Vet. App. 69, 72 (1993); Hensley v. Brown, 5 Vet.
App. 155, 161 (1993).
Service connection may be established on a secondary basis
for a disability that is proximately due to or the result of
a service-connected disease or injury. 38 C.F.R. § 3.310(a)
(2001). Establishing service connection on a secondary basis
requires evidence sufficient to show (1) that a current
disability exists and (2) that the current disability was
either (a) caused by or (b) aggravated by a service-connected
disability. 38 C.F.R. § 3.310(a) (2001); Allen v. Brown, 7
Vet. App. 439 (1995) (en banc) (reconciling Leopoldo v.
Brown, 4 Vet. App. 216 (1993), with Tobin v. Derwinski,
2 Vet. App. 34 (1991)). In Allen, the United States Court of
Appeals for Veterans Claims (formerly the United States Court
of Veterans Appeals) (Court) indicated that the term
"disability" as used in 38 U.S.C.A. § 1110 "refers to
impairment of earning capacity, and that such definition
mandates that any additional impairment of earning capacity
resulting from an already service-connected condition,
regardless of whether or not the additional impairment is
itself a separate disease or injury caused by the service-
connected condition, shall be compensated. The Court then
concluded that "pursuant to § 1110 and § 3.310(a), when
aggravation of a veteran's non-service-connected condition is
proximately due to or the result of a service-connected
condition, such veteran shall be compensated for the degree
of disability (but only that degree) over and above the
degree of disability existing prior to the aggravation."
Id.
Thus, service connection on a secondary basis may be granted
under one of two conditions. The first is when the disorder
is proximately due to or the result of a disorder of service
origin. In that case, all symptomatology resulting from the
secondary disorder will be considered in rating the
disability. The second is when a service-connected
disability aggravates a nonservice-connected disability. In
those cases, VA may only consider the degree of disability
over and above the degree of disability prior to the
aggravation.
The Board must assess the credibility and weight of all the
evidence, including the medical evidence, to determine its
probative value, accounting for evidence which it finds to be
persuasive or unpersuasive, and providing reasons for
rejecting any evidence favorable to the claimant. See
Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v.
Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v.
Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1
Vet. App. 49 (1990). Equal weight is not accorded to each
piece of evidence contained in the record; every item of
evidence does not have the same probative value. Moreover,
the Board may not base a decision on its own unsubstantiated
medical conclusions, but, rather, may reach a medical
conclusion only on the basis of independent medical evidence
in the record or adequate quotation from recognized medical
treatises. See Colvin v. Derwinski, 1 Vet. App. 171 (1991).
The appellant is service connected for disabilities of the
left hip and femur, rated 10 percent disabling, and for
residuals of stress fractures of the right and left tibiae,
assigned noncompensable evaluations. He has also been shown
to have residuals of a tear of the anterior cruciate ligament
of the left knee. However, the Board finds that the evidence
that his service-connected disabilities did not cause his
left knee disability outweighs the evidence that supports his
claim.
The only competent medical evidence in favor of the
appellant's claim is the September 1997 statement by Dr. F.
that it is "possible" that the appellant's knee injury in
April 1997 was connected to his service-connected hip
disability. The evidence against the appellant's claim
consists of statements by a VA examiner in March 1999 and
June 1999 that the appellant's left knee disability was not
secondary to his left hip disability or to an altered gait
resulting from his service-connected disabilities.
The statements by the VA examiner in March 1999 and June 1999
are accorded greater weight than the statement of Dr. F. Dr.
F's statement is diminished by his own qualification that
there was "no way" he could evaluate the association
between the appellant's left knee injury and his left hip
disability. In addition, Dr. F. ventured only that it was
"possible" the knee injury was related to the hip
disability. See Winsett v. West, 11 Vet. App. 420, 424
(1998) (A doctor's opinion phrased in terms of "may or may
not" is an insufficient basis for an award of service
connection.). In contrast, the VA examiner provided a
definite assertion that the knee injury was not related to
the service-connected disabilities. Further, unlike Dr. F.,
the VA examiner had the benefit of reviewing the appellant's
claims folder, which included the records for his original
in-service injuries and an examination report that had
evaluated the severity of the appellant's service-connected
conditions prior to his knee injury. Finally, the statements
by the VA examiner are bolstered by his complete explanation
of the rationale for concluding that the appellant's knee
disability is unrelated to his service-connected
disabilities. In contrast, Dr. F. offered no explanation for
why the disabilities might be related.
Any contentions by the appellant himself that his left knee
disability is related to his service-connected left hip and
femur and tibial disabilities are not competent. There is no
indication that he possesses the requisite medical knowledge
or education to render a probative opinion involving medical
diagnosis or medical causation. See Edenfield v. Brown, 8
Vet. App. 384, 388 (1995); Robinette v. Brown, 8 Vet. App.
69, 74 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993);
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).
Similarly, the appellant's testimony at the hearing regarding
what Dr. F. told him about a relationship between his left
hip disability and his left knee injury is insufficient to
constitute medical evidence because, although the original
statement was made by a doctor, the present statement is the
appellant's assertion. Robinette v. Brown, 8 Vet. App. 69,
77 (1995) ("[T]he connection between what a physician said
and a layman's account of what he purportedly said, filtered
as it was through a layman's sensibilities is simply too
attenuated and inherently unreliable to constitute 'medical'
evidence."). Even if the appellant's testimony regarding
what Dr. F. told him were considered competent medical
evidence, it would only bolster the Board's conclusion that
Dr. F. was tentative in suggesting a relationship between the
disabilities.
For the above reasons, the Board concludes that the
preponderance of the evidence is against the claim for
service connection for a left knee disability as secondary to
the service-connected disabilities of the left hip and
tibiae. Therefore, the benefit of the doubt rule enunciated
in 38 U.S.C.A. § 5107(b) is not for application. A
reasonable doubt exists where there is an approximate balance
of positive and negative evidence that does not
satisfactorily prove or disprove the claim. 38 C.F.R.
§ 3.102 (2001). It is a substantial doubt and one within the
range of probability as distinguished from pure speculation
or remote possibility. Id. It is not a means of reconciling
actual conflict or a contradiction in the evidence. Id. In
this case, for the reasons and bases discussed above, a
reasonable doubt does not exist regarding the relationship
between the appellant's left knee disability and his service-
connected disabilities of the left hip, femur and tibiae.
ORDER
Service connection for a left knee disability, claimed as
secondary to service-connected disabilities of the left hip
and tibiae, is denied.
BETTINA S. CALLAWAY
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the claim
on or after November 18, 1988" is no longer a condition for
an attorney-at-law or a VA accredited agent to charge you a
fee for representing you.